Occasionally, an administrative law judge (ALJ) or administrative appeals
judge (AAJ) may incorrectly approve a fee agreement when the agreement
does not meet the requirements of the Social Security Act or an exception
to the fee agreement process applies, as described in the Hearings,
Appeals and Litigation Law (HALLEX) manual
I-1-2-12. Processing center
(PC) and field office (FO) personnel may not reverse a fee agreement
decision made by an ALJ or an AAJ. When the PC or FO authorizer
responsible for effectuating a favorable hearing or Appeals Council (AC)
decision concludes that the ALJ or AAJ incorrectly approved a fee
agreement, the authorizer will take the following actions:

Process the claim to payment;

Withhold 25 percent of past-due benefits if the representative is eligible
for direct fee payment;

Request an incomplete notice to the claimant, deferring action on the fee
agreement;

Prepare a protest memorandum, addressed to the Regional Chief ALJ (RCALJ)
if the decision maker was an ALJ or the Deputy Chair of the AC if the
decision maker was an AAJ; and

Send the memo with a copy of the ALJ or AC decision, the appointment(s) of
representative(s), the fee agreement, the order approving the fee
agreement, and any relevant documents, to the RCALJ (for ALJ decisions) or
the Attorney Fee Branch (AFB) (for AC decisions).

NOTE:

As explained in HALLEX
I-1-2-44 C, if an
ALJ in a National Hearing Center (NHC) incorrectly approves a fee
agreement, the RCALJ that supervises the hearing office that transferred
the case to the NHC will handle the administrative review of the fee
agreement approval. However, for administrative efficiency reasons, in the
Program Operations Manual System (POMS)
GN
03940.090D, the PC and FO are instructed to send protest memos to the
RCALJ of the region where the claimant is currently residing. While the
impact should be minimal, if the receiving RCALJ does not have
jurisdiction over the matter, the receiving office will forward the
protest memo to the RCALJ with jurisdiction and notify the PC or FO of the
transfer.

If the Office of Hearings Operations (OHO) or Office of Analytics, Review,
and Oversight (OARO) reverses the fee agreement determination, the PC or
FO will diary the case for receipt of a fee petition and fee authorization
from OHO or OARO.

If OHO or OARO affirms the fee agreement determination, the PC will follow
standard procedures for processing an approved fee agreement.

If a PC or FO authorizer refers a case to OHO or OARO because he or she
believes the ALJ or AAJ incorrectly approved a fee agreement, the
following individuals have authority to review the issue:

For hearing level cases, the RCALJ who has jurisdiction over the
claimant's servicing hearing office (HO) or, if issued by an NHC ALJ, the
RCALJ who has jurisdiction over the HO that transferred the case to the
NHC (see the NOTE in subsection A above); or

For AC cases, the Deputy Chair.

Within 30 days, the RCALJ or Deputy Chair will review the disputed action
to determine whether the agreement meets the provisions in section
206(a)(2)(A)
of the Social Security Act (and is not excepted from the fee agreement
process). These procedures are set forth in HALLEX
I-1-2-12.

If the RCALJ or Deputy Chair concludes the ALJ or AAJ incorrectly approved
a fee agreement, he or she will:

Issue an order to the claimant disapproving the fee agreement, advising
that if the representative intends to charge and collect a fee, he or she
must file a fee petition;

Send a copy of the order disapproving the fee agreement to the
representative with a cover letter; and

Send a copy of the corrective action to the respective PC or FO and the
ALJ or AAJ who signed the prior order (see HALLEX I-1-2-114 for sample fax
cover sheets).

Refer to HALLEX I-1-2-112 for
sample language for the order disapproving the fee agreement and the cover
letter to the representative.

If the RCALJ or Deputy Chair affirms the fee agreement approval, he or she
will advise the PC or FO by memorandum to process the representative's fee
under the fee agreement process. Refer to HALLEX
I-1-2-113 for sample language
for the memorandum.